Folkstone Maritime, Ltd. v. CSX Corp.
| Decision Date | 18 August 1995 |
| Docket Number | 94-2402,Nos. 94-2306,s. 94-2306 |
| Citation | 64 F.3d 1037 |
| Parties | FOLKSTONE MARITIME, LIMITED, a Cyprus Corporation, Plaintiff-Appellee, and Great Lakes Towing Company and Carl B. Turner, Captain, Third Party Defendants-Appellees, v. CSX CORPORATION, a Corporation, and CSX Transportation, Incorporated, a Corporation, Defendants/Third Party Plaintiffs-Appellants, and Lexington Insurance Company, Home Insurance Company, Underwriters of London, Lloyds, et al., Intervening Plaintiffs-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Michael A. Snyder (argued), Richard A. Forster, Ray, Robinson, Carle, Davies & Snyder, Chicago, IL, for Folkstone Maritime, Ltd., a Cyprus Corp. Edward M. Kay (argued), James T. Ferrini, Robert N. Dunn, Kimbley A. Kearney, Jeffrey J. Asperger, Clausen, Miller, Gorman, Caffrey & Witous, Cornelius P. Callahan, Callahan & Ehret, Thomas L. Hogan, Soo Line R. Co., Chicago, IL, for CSX Transportation, Inc., CSX Corp.
Harney B. Stover (argued), Louis F. Raymond, Davis & Kuelthau, Milwaukee, WI, for Great Lakes Towing Co.
Edward M. Kay, James T. Ferrini, Kimbley A. Kearney, Clausen, Miller, Gorman, Caffrey & Witous, John J. Henely, Cornelius P. Callahan, Callahan & Ehret, Chicago, IL, for Lexington Ins. Co., Home Ins. Co., Lloyds of London, Underwriters.
Edward M. Kay, James T. Ferrini, Kimbley A. Kearney, Jeffrey J. Asperger, John J. Henely, Cornelius P. Callahan, Thomas L. Hogan, Soo Line Railroad Co., Chicago, IL, for International Ins. Co.
Charles R. Watkins, Susman, Buehler & Watkins, Chicago, IL, Karl L. Cambronne, Sandra J. McGoldrick-Kendall, Chestnut & Brooks, Minneapolis, MN, for Carl B. Turner.
Edward M. Kay, James T. Ferrini, Kimbley A. Kearney, Jeffrey J. Asperger, Clausen, Miller, Gorman, Caffrey & Witous, John J. Henely, Cornelius P. Callahan, Callahan & Ehret, Thomas L. Hogan, Soo Line R. Co., Chicago, IL, for Lexington Ins. Co., Home Ins. Co., Lloyds of London, Underwriters, National Union Fire Ins. Co.
Before CUDAHY, ESCHBACH and RIPPLE, Circuit Judges.
On May 6, 1988, the Motor Vessel Pontokratis allided 1 with the B & O Railroad Bridge as it transited northbound on the Calumet River. The damage to the Bridge and vessel was substantial, and by Coast Guard estimate approached $14,000,000. The district court entered judgment on the issue of liability for Folkstone Maritime, the M/V Pontokratis, Captain Turner and the Great Lakes Towing Company, and against the owner of the Bridge, CSX Corporation, CSX Transportation and the CSX insurers (collectively "CSX"). CSX appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
On May 6, 1988, the Motor Vessel ("M/V") Pontokratis prepared for its northbound journey on the Calumet River to Lake Michigan. The Pontokratis is a large freight vessel, with a length of 590.1 feet, and weight of over 15,881 gross tons. As the ship prepared to depart, it had a draft of 15 feet forward, and 17.8 feet aft. Accordingly, at this draft, the top of the mast of the Pontokratis was approximately 105 feet above the waterline (the vessel's height of mast above keel was listed at 123.1 feet in the vessel particulars).
Captain Carl B. Turner, the pilot of the Pontokratis during its Calumet River navigation and an employee of the Great Lakes Pilotage Authority, boarded the ship at approximately 4:30 p.m. Captain Turner and the master of the Pontokratis, Captain Pappamethodiu, dined together. Captain Turner later communicated by radio with the tug captains regarding the maneuvering of the Pontokratis to Lake Michigan and verified with the ship's crew the operating condition of the ship's essential systems. A continuous VHF radio channel was maintained between the tugs and the vessel throughout the transit.
Around 6:20 p.m., the Pontokratis departed her berth at approximately mile 6.84 of the Calumet River. In accordance with a contract between Great Lakes Towing Co. ("Great Lakes") and Folkstone Maritime, Ltd. ("Folkstone"), Great Lakes assisted the Pontokratis during its northern transit thorough the Calumet River to Lake Michigan.
Two tugs--the Florida (captained by Charles Kelley and placed at the bow) and the South Carolina (commanded by Donald Thayer and placed at the stern) were sent to assist the transit. The transit of the Pontokratis was not a "deadboat" tow. Rather, the Pontokratis was at all times under her own steerage and power. The tugs maintained taut lines connected to the vessel and operated according to instructions given by Captain Turner, who was piloting the vessel from the navigation bridge.
At the time of departure, Captain Turner and Captain Pappamethodiu were accompanied on the navigation bridge by Third Officer Noe Galigao, who manned the Engine Order Telegraph, and Quartermaster Jardgie Arlos, who was at the helm. The Relief Quartermaster, Anson Tomdecillas, came to the bridge to take the helm duties at 8:00 p.m. The Chief Mate of the Pontokratis, Nikolaos Spetsiotis, was stationed on the bow of the vessel with the Bosun, Georgios Xiluras, Apprentice Mate, Celso Roquero, and other members of the crew's deck force. Second Mate, Mihail Maniatis, was stationed on the stern of the vessel with Able Seaman Manuel Padin and two other members of the deck force.
The Pontokratis proceeded dead slow ahead with the tug Florida ahead and the South Carolina off the stern. At mile 1.5 of the River, in the vicinity of the Chicago Skyway Toll Authority Bridge, which has a vertical clearance of 125 feet, Captain Kelley of the Tug Florida received a message from the operator of the Conrail Bridge that there would be a slight delay before the Bridge could be raised for safe passage of the vessel. This information was communicated by VHF radio telephone to Captain Turner who, around 7:50 p.m., ordered the Pontokratis to stop dead in the water.
The Conrail Bridge was the first of a series of four railroad bridges on the Calumet that were located within 300 feet of each other. The Conrail Bridge is a vertical lift bridge with a vertical clearance of 120 feet when raised and a horizontal clearance of 138 feet. The next two bridges were both vertical lift bridges with similar clearances; they were permanently out of service and in a raised position. The final bridge was the B & O Railroad Bridge (Bridge 258/0, the Baltimore and Ohio Railroad Company Bridge). The Bridge was a single leaf bascule bridge that opened from the west side of the river and had a published horizontal clearance of 135 feet and vertical clearance of 19 feet above ordinary high water when lowered. No vertical clearance figures were published for the Bridge in its raised position on navigation charts or in the United States Coast Pilot--a guidebook published by the Department of Commerce for water navigation.
While the Pontokratis was holding, waiting for the Conrail and B & O Bridges to open, a fishing vessel, the Saltshaker, operated by Art Neilan, approached from astern. Mr. Neilan decided to wait until the Pontokratis cleared the series of bridges before he passed so that he would have sufficient room without endangering his vessel. Mr. Neilan thus observed the allision.
At 8:00 p.m., the Conrail Bridge operator communicated to the B & O Bridge operator that the Pontokratis was transiting, and that it was a "big boat." The Conrail Bridge displayed green lights to signal that it was safe to proceed, and Captain Turner, after observing the Conrail and B & O Bridges opening, ordered the transit to continue.
The Pontokratis moved ahead "dead slow" west of the centerline of the river. By 8:05 p.m., the bow of the Pontokratis had passed the Conrail Bridge, and began passing under the B & O Bridge. Crew members on the bow of the vessel observed that the bridge-leaf had ceased moving. The Florida was keeping its line taut while moving ahead, while the South Carolina followed astern waiting for orders from Captain Turner. Captain Pappamethodiu stood on the port bridge wing watching the clearance off the bridge protection fenders on the port side. Captain Turner stood in the front window of the wheelhouse and occasionally walked out to the bridge wings to check clearances on each side. On two occasions, Turner ordered the engines stopped and then ahead dead slow to reduce the speed of the Pontokratis.
At 8:07 p.m., Captain Turner ordered the ship to alter course to port to line up for the At 8:08 p.m., as the Pontokratis passed under the B & O Bridge, Captain Pappamethodiu stated that the vessel was about twelve feet off the bridge protection fendering system on the port side. Captain Pappamethodiu relayed distances to Captain Turner, who was now in the center of the wheelhouse. Captain Pappamethodiu yelled three times that the Bridge was coming closer, and Captain Turner immediately ordered a 20? port rudder, and called the tug South Carolina to pull the stern away from the Bridge. The port wing of the navigation deck allided with the Bridge. Captain Pappamethodiu ran into the wheelhouse and ordered an evacuation. The bridge-leaf collapsed on the wheelhouse, causing the vessel to roll to port and to be pulled against the bridge protection fendering system on the port side of the vessel. The engineer on watch felt the accident and stopped the main engines of the Pontokratis around the same time that one of the crew members came below to order such an action.
transit under the next bridge, the 95th Street Bridge. To facilitate this navigation alteration, Captain Turner called the tug South Carolina to pull the stern to starboard. The Pontokratis was to the west of the centerline of the 138-foot B & O Bridge horizontal draw in order to allow sufficient clearance for the stern and the South Carolina. As these maneuvers were implemented, Captain Pappamethodiu observed the distance closing between...To continue reading
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